Anil Katarki writes on the tumultuous political and legal history of India’s Constituent Assembly.
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EVER since India’s Constituent Assembly adopted its Constitution on November 26, 1949, we have been celebrating the day as ‘Constitution Day’.
The citizenry of our country, particularly lawyers, is filled with a sense of pride for the laboriously drafted Constitution by the Constituent Assembly which was a one-party body in a single-party country.
The Constituent Assembly was the Congress and the Congress was India. The Indian National Congress rightly included the demand which was gaining ground among Indian intelligentsia for a constituent assembly as part of its official policy in 1934.
Jawaharlal Nehru summed up the mood of the nation by saying, “This cannot be done by the wisest of lawyers sitting together in conclave; it cannot be done by small committees trying to balance interests and calling that constitution-making; it can never be done under the shadow of an external authority. It can only be done effectively when the political and psychological conditions are present, and the urge and sanctions come from the masses.”
By this time, Indians were convinced that only a constitution drawn up fully by a constituent assembly elected on the basis of adult franchise, peppered with representatives of important minorities of the nation, could effectively nudge out the White Paper.
The Indian mood for a self-drawn constitution moved from strength to strength during these years. Thereafter, in many provincial legislative assemblies and in the Central legislative assembly in 1937, at the congresses at Faizpur, Haripura, and Tripuri, and at the Shimla Conference in 1945, the Congress reasserted themselves that India could not accept anything short of a constitution drafted by themselves independent of a foreign hand.
During World War II, Indians were in a bullish mood of self-rule and self-assertion and were fully ready to take the country’s destiny into their own hands.
The Indian National Congress rightly included the demand which was gaining ground among Indian intelligentsia for a constituent assembly as part of its official policy in 1934.
By the time of independence, a political observer wrote, Indians had “a general awareness of nationality and national dignity. The Indian public felt itself a corporate unit and felt itself adult. Independence had been an ideal, a desideratum to be worked for; now it was an axiom of public life.”
Consequently, in December 1946 a constituent assembly was convened with all power and authority derived from the people of the nation. It strode and progressed and finally gifted the country an Indian-made constitution.
It has been said that the reason for the Constitution’s success lies in its indigenous nature. Indian ethos and cultural values were hardwired into the Constitution to make it successful. It was better suited to Indian needs. Before focusing on what the assembly did, it is best to look at the way in which the assembly came into existence and how it functioned.
The Constituent Assembly was for all purposes and intent a one-party assembly, in the hands of the mass party, the Indian National Congress, which steered the nation clear of foreign rule. The Congress was a true representative of India by all accounts, and its internal decision-making processes were democratic.
The strength of the Constituent Assembly was in its inclusive infrastructure. The leaders of the party, who were also the most important members of the Union government and of the assembly, were magnetic and alluring in their appeal and thus had immense power. They were all ears for the rank and file of the assembly to take them on board to achieve consensus.
Towards the end of World War II, as can be seen, India was eager to have a constituent assembly and leaders were more vociferous in the demand for one. M.K. Gandhi, who was not so welcoming in his attitude toward a constituent assembly in 1934, also began to desire an assembly.
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A major turning point came when Britain, in the person of Sir Stafford Cripps, accepted the idea that the time had indeed come to allow Indians to have a constitution that falls from their own collective wisdom and to achieve this an elected body of Indians should frame the Indian Constitution.
The demand of Indians for self-determination percolated through the masses of India and was supported by India’s war-augmented power. A new, stronger sense of unity dawned on Indians— and coincided with a marked decrease in the force Britain could exert on India.
The British were plagued by Palestine and other problems overseas and battle fatigue at home.
It was against this background that the newly elected Labour government announced in September 1945 that it was deliberating the creation of a constituent body in India and ordered that the national elections be held during the winter of that year so that freshly created provincial legislatures would be ready to act as electoral bodies for a constituent assembly.
During World War II, Indians were in a bullish mood of self-rule and self-assertion and were fully ready to take the country’s destiny into their own hands.
In furtherance of this move, the London government sent a parliamentary delegation to India in January 1946, and thereafter a cabinet-level mission.
The Cabinet Mission landed in New Delhi with the sole purpose of assisting the Viceroy in devising in India the machinery by way of which Indians could frame their own Constitution.
The Cabinet Mission also aimed at mediating between the Congress and the Muslim League to foster a cultural, religious and constitutional unity between the two communities which was the most ticklish task for non-Indians to attempt. It was almost certainly doomed to fail.
Those were the days of conflict of interest between Muslims and the Hindus. During the late 1920s and 1930s, minor contretemps led to a serious communal divide in the country. Muslim disgruntlement and displeasure, till now pent up, found their voice under the leadership of Mohammed Ali Jinnah. He took the mantle of the Muslim League, still in its infancy, to advocate Muslim rights and whip up the 60-year-old two-nation theory.
The theory propounded that Muslims in a Hindu-dominated country cannot seek their identity being culturally as well as religiously a group apart and they must live in their own State to pursue their long-cherished ambitions and aspirations.
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While the Congress was all for a constituent assembly and Indian self-determination, the Muslim League, shepherded by Jinnah, was pursuing its own path skewering the idea of one nation under one constitution.
Instead of supporting a constituent assembly, the league was insisting in 1940 that before independence Muslims must be assured the sanctuary of autonomous areas.
The British were plagued by Palestine and other problems overseas and battle fatigue at home.
In the early 1930s, not many Muslims looked to the league as a means of their political expression. But by 1946 there was a groundswell of Muslim support for the league and on the strength of the 1946 elections, the league became a strong spokesman for Indian Muslims. This growth of the league did not make the Congress a Hindu organisation which the league claimed was the case.
The Congress remained immutable in its viewpoint that the people of India were Indians, no matter what their religion, they were one nation. The British must leave India and allow independent Indians to come together, settle their differences and begin to shape their future.
The Cabinet Mission was in favour of keeping India as one State and the three members of the Cabinet Mission really hoped to achieve a compromise plan to bring together Hindus and Muslims, sinking their differences.
The plan of the Cabinet Mission was to invest the Union government with the power encompassing foreign affairs, communications and defence while grouping the provinces geographically into three regions, one of which would be predominantly Muslim, one predominantly Hindu, and the third region would be peopled by the population of the two communities, nearly in equal measure.
The mission made its plan public in May 1946. By the end of June and after careful discussions, both the league and the Congress had accepted it with reservations. Jinnah liked the plan because he saw the seeds of Pakistan in compulsory grouping. The Congress welcomed it subject to certain interpretations of its provisions having been accepted by the British and the league.
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This was the beginning of a détente which lasted long enough to see the Constituent Assembly getting elected under the terms of a portion of the Cabinet Mission plan.
In the early 1930s, not many Muslims looked to the Muslim League as a means of their political expression.
Adult suffrage was found complicated and tardy letting the provincial legislatures elect the assembly. The provinces were to be represented in the assembly in the approximate ratio of one to one million of their population. The members of three communal categories in the legislatures, Muslims, Sikhs and General (Hindus and all other communities), would elect separately, according to their percentage of the province’s population and their proportion of the provincial delegation.
Under the Mission Plan, the Princely States were to have 93 representatives in the assembly, but the method of selecting them was left to the assembly and the States’ rulers by way of consultation with each other.
The assembly, although elected, was far from being in session. Jinnah found justification in some unguarded remarks made by Nehru, withdrew his acceptance and called upon the league representatives to boycott the assembly.
The league never lifted the boycott. The Cabinet Mission failed because the Congress and the league were too far alienated from each other and any reconciliation was a pipe dream. The Cabinet Mission disappeared but not without leaving the imprint of its efforts on the creation of the Indian Constituent Assembly and its working on the Constitution for India.
In August 1946, when India was on its way to independence, the chasm of differences between the league and the Congress grew wider to sit together in the Constituent Assembly to form the interim government as envisaged in the Cabinet Mission Plan.
The Viceroy, Archibald Wavell, had tried in vain to stitch up unity between the Congress and the league resolving the doubts. Meanwhile, the Congress went ahead with its plan for the assembly and appointed an expert committee to draft fundamental rights and to fix early sessions.
At the invitation of the Viceroy, the Congress formed the interim government with Nehru heading it, as the Vice-President of the Viceroy’s executive council, de facto Prime Minister. Though the league refused to join the interim government at the start, later it had a change of heart and joined with the declared purpose of spoiling it.
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When the assembly embarked on its three-year journey of drafting the Constitution on December 9, 1946, the representatives of nearly 100 million Indian Muslims were absent while the representatives of all other communities were present.
The Constituent Assembly was meeting with the permission of the British government, and a fourth of the sub-continent was not represented at the assembly’s deliberations.
Congress leaders were divided over whether or not such a body had any power or authority of its own. The Indian Independence Act passed by the British Parliament came into effect on August 15, 1947, giving the Constituent Assembly the legal status it had assumed since its inception.
The Cabinet Mission Plan faded into history, and the Constituent Assembly settled down to draft free India’s Constitution.
On November 25, 1949, when Dr B.R.Ambedkar, Chairman of the Drafting Committee, delivered a speech to mark the completion of the Constituent Assembly’s uphill task of framing the Indian Constitution, it had been two years, eleven months and seventeen days since it first met on December 9, 1946.
The Cabinet Mission failed because the Congress and the Muslim League were too far alienated from each other and any reconciliation was a pipe dream.
During this period, the Constituent Assembly had altogether held eleven sessions and out of these eleven sessions, the first six were spent passing the Objective Resolution and on the consideration of the reports of committees on fundamental rights, Union Constitution, Union powers, provincial Constitution, minorities, the Scheduled Areas and Scheduled Tribes.
The seventh, eighth, ninth, tenth and eleventh sessions were devoted to the consideration of the Draft Constitution. These eleven sessions of the Constituent Assembly had consumed 165 days. Of these, the assembly spent 114 days for the consideration of the draft Constitution.
The number of articles in the draft Constitution at the end of the consideration stage was increased to 386. In its final form, the draft Constitution contained 395 Articles and eight Schedules. The total number of amendments to the draft Constitution tabled was approximately 7,635. Of them, the number of amendments actually moved in the house was 2,473.
